:
Thank you very much, Mr. Chair.
Honourable members of the committee, let me begin by thanking you for the opportunity to appear before you today to discuss this important bill. I'd also like to thank you on behalf of all members of the Canadian Forces for your continuing interest and support for the men and women who wear the uniform for our country. Your ongoing commitment to a modern and relevant military is most appreciated.
I hope that my appearance today, both on behalf of the Chief of the Defence Staff and in my own role as vice-chief, will be beneficial to this important study. With me today are Colonel Alain Gauthier, the director general of the Canadian Forces Grievance Authority, and Colonel Tim Grubb, the Canadian Forces provost marshal, or head policeman.
[Translation]
In a healthy democracy, an effective military should both reflect the society and the values that it is designed to protect, as well as maintain the necessary discipline, efficiency and morale to be operationally effective in delivering that protection.
The changes proposed by Bill are necessary to succeed in both aspects of this challenge. Specifically, the proposed updates seek to address the three main subject areas of the Lamer report: the military justice system; the position of Canadian Forces provost marshal and the related military police complaints process; and the Canadian Forces grievance process.
[English]
Both the minister and the Judge Advocate General have already spoken to the provisions of the bill that are aimed at updating the military justice system. On these matters I really must defer to the expertise of the Judge Advocate General, who has statutory responsibility under the National Defence Act for military justice. However, the other two topics, the Canadian Forces provost marshal and the Canadian Forces grievance system, are indeed part of my responsibilities as Vice-Chief of the Defence Staff. Today I'd like to focus my remarks on these topics.
With regard to the Canadian Forces provost marshal, the Lamer report recommended that the responsibilities and command relationships of this position be clearly defined in the National Defence Act. This is exactly what Bill proposes. The bill sets out the responsibilities of the provost marshal, specifies the minimum rank to be held by the provost marshal, and clearly defines the conditions of tenure for the position. The bill would also increase transparency by requiring the provost marshal to submit an annual report to the Chief of the Defence Staff.
I understand that some concerns have been expressed regarding Bill 's potential impact on the investigative independence of the provost marshal, and this afternoon I'd like to address those concerns.
[Translation]
It is important to note that the military police in general, and the provost marshal in particular, are unique amongst police in Canada. They perform military duties in addition to investigative duties and often conduct investigations in active theatres of operation such as Afghanistan.
Certain command relationships must exist to recognize this reality. Clause 4 of the bill provides that the provost marshal acts under the general supervision of the vice-chief of the defence staff in respect of the provost marshal's statutory duties. The clause authorizes the vice-chief of the defence staff to issue general instructions in writing regarding these responsibilities, and it requires the provost marshal to ensure that these instructions are made available to the public. I believe that this is generally well understood.
[English]
However, I understand that the section proposing that the vice-chief may issue instructions or guidelines in writing in respect of a particular investigation has been the subject of some concern. This authority, which would only be exercised in exceptional circumstances, reflects the necessity for a transparent mechanism to convey direction to the provost marshal when operational imperatives must take priority over or be weighed against the investigative obligations of the military police.
For example, given the unique requirement to conduct investigations in zones of armed conflict, this authority might be exercised in a situation the provost marshal is investigating under circumstances in which its continuation may for logistical reasons or because of high risk to CF personnel directly impact upon the potential success of an ongoing operation.
The VCDS is the appropriate authority to balance the commander's concerns for mission success and the provost marshal's need to advance an investigation. To protect against a potential abuse of this authority, Bill provides transparency safeguards. It would require the provost marshal to make any instructions or guidelines from the VCDS regarding the specific investigation available to the public, unless the provost marshal himself or herself considers that making it public would not be in the best interests of the administration of justice.
In addition, existing sections of the National Defence Act would allow the provost marshal to make an interference complaint to the Military Police Complaints Commission if he or she suspected the VCDS of improperly interfering in an investigation. This is an area in which there are competing principles, requiring a balance between two legitimate and fundamental concerns: the investigative independence of the provost marshal and the responsibility of the chain of command for the accomplishment of operational objectives.
I believe that Bill C-41 proposes a viable and appropriate balance between these two imperatives. I also understand that in his report, Chief Justice Lamer concluded that independence was protectable through transparency and accountability, exactly what is proposed in this bill. Furthermore, on April 1, 2011, the Canadian Forces provost marshal will be assuming full command of all Canadian Forces military police directly involved in policing duties. The changes to the military police command and control structure are a continuation of the recommendations made in various reports to strengthen the independence, authority, and efficiency of the provost marshal in the exercise of his or her policing mandate.
I'd now like to turn to the subject of the Canadian Forces grievance process. Let me underscore that dealing effectively with grievances in the Canadian Forces is not a simple corporate management issue. It is a key leadership responsibility that the Chief of the Defence Staff, I, and all leaders take very seriously.
[Translation]
An effective grievance system is crucial to ensuring the welfare of the men and women of the Canadian Forces and to maintaining the very discipline, morale and operational effectiveness that I mentioned earlier. The bill would rename the Canadian Forces Grievance Board, which has done excellent work since 2000, as the Military Grievances External Review Committee. Renaming the organization would help reinforce the fact that the board, like the military police complaints commission, is an independent review body and not part of the Canadian Forces.
[English]
The bill would also make the entire grievance process more efficient by allowing the Chief of the Defence Staff to delegate his power as the final authority in the grievance process to other senior officers directly responsible to him. I must emphasize that the CDS would remain ultimately responsible and accountable for these decisions. It is not, as some have suggested before this committee, an abdication of the CDS's responsibility for the welfare of the men and women of the CF. Rather, it is a reflection of the reality recognized by Chief Justice Lamer that it is impractical and unreasonable to expect the CDS to personally decide every grievance in an organization of the size and complexity of the Canadian Forces. Both of these measures are endorsed by the grievance board.
[Translation]
Last spring, the Canadian Forces conducted a ten-year review of the grievance system and we remain committed to its constant improvement. This improvement involves many non-statutory changes that are already underway, many of which address some of the concerns presented by the grievance board. Several initiatives, such as the digitization of the grievance file, the creation of a central registry and the adjustment of timelines, are underway to reduce the time it takes to staff a grievance.
[English]
A key initiative is the trial of the principled approach, which allows the grievance board to review a larger number of files in order to increase transparency and fairness. Currently, the grievance board provides findings and recommendations on only four types of files: reversion of rank and release from the CF; conflict of interest and harassment; pay and financial benefits; and entitlements to medical and dental care.
I'm confident that these new initiatives will give us the ability to reduce the staffing of grievances to 12 months while increasing the transparency and the fairness of our complaint resolution system. Of note, the Lamer report recommended that the Chief of the Defence Staff be given statutory authority to approve financial compensation in resolving a grievance. While we agree with this recommendation and we are committed to its implementation, there are a number of complex authority issues that must be resolved before we can move forward.
When I took over as Vice-Chief of the Defence Staff last summer, my goal was to resolve this issue immediately, but I must admit that I have yet to find a mechanism that is legally, administratively, and practically acceptable. We are currently reviewing options that range from legislative amendments to ex gratia authority. This is one of my top priorities, and I will closely monitor the working group that has been tasked to find a solution.
Mr. Chair, let me conclude by re-emphasizing how important I believe it is that the provisions of Bill be adopted as soon as possible. In that vein, I would be pleased to assist you in your consideration of the bill by providing any additional background information or explanation that you might require.
I would like to once again thank you for your time. I welcome any questions you might have.
:
Well, Mr. Dryden, it's a difficult question. As I said early on, I defer to the Judge Advocate General on technical matters of law, but as a leader, I share your concern with these questions. As a leader, it is critically important to me to do what is fair and right for the men and women under my command, and I am as seized of the importance of protecting their rights and seized of the importance of protecting the collective rights of the men and women in uniform as you are.
I believe that we need to be careful when we look at special circumstances and not be self-serving when we identify special circumstances, but I think most would agree that in the case of a military force there are circumstances in which provision of access, for example, to swift and appropriate justice may be a challenge in a Canadian context, so we need to provide a context for that for our people.
Also, when the circumstances and the expectations may be different, we need to make those clear to our people. At the end of the day, we need a system of justice that supports discipline and morale in a military force that meets the requirements of the Government of Canada and the expectations of Canadians.
These are challenging questions, and they're good questions to ask ourselves on an ongoing basis. I believe we have found a very good balance, in the amendments to the military justice system that we have been making for some time now, in recognizing the charter rights of our people and in amending the way we go about administering justice on an ongoing basis, the way we deal with procedural fairness, and the way we deal with the involvement and the independence of policing functions, of courts, and of summary trials. I think we were mindful in all that we have amended as we have gone forward, and in everything we do we are mindful of these rights.
I'm not sure that answers your question.
:
Sir, it's taken us very long to get here; this is not our first attempt. We have tried--I say we, but there have been two other bills before the House that did not make it through and died on the order paper. One of the reasons Bill is structured the way it is is to try to take the essential elements that were felt to be more or less agreeable and get those established so as to avoid another protracted process that might not lead us to some of the changes that we need to put in place.
In terms of the financial compensation, sir, I think the way government is structured, the way departments are structured, the way federal accountabilities are structured, and the way the Department of National Defence, the Chief of the Defence Staff, and the deputy minister are positioned in that organization work very well from a number of perspectives. However, in this particular one, it has become very challenging to connect all of that in a way that would give the chief the ability to make the types of decisions that from a grievance perspective we feel he ought to be able to make and yet accept for the government the financial commitment that this would entail in order to redress the grievance. We have looked at an internal procedural resolution to that and we continue to experiment with it, but because of some of these other issues, that procedural fix is unlikely to satisfy the members of this committee, because it's not satisfying me.
We have looked at the potential for a legislative change, but I believe that the cascading requirements of legislation may make that a rather challenging approach. We've looked at a way of approaching Treasury Board to get authorities for the chief in these specific areas. That work continues, with Treasury Board and internally, to see how we would do that. As I say, I have been surprised at the challenge that we have encountered in dealing with some of the positions inside and outside the department. They were fairly hard when we started this investigation, but I believe they have been adjusted through a process of dialogue, negotiation, and experimentation, to the point that I actually feel that we can probably address this issue through a combination of both regulatory adjustments through the Treasury Board and procedural adjustments to how we approach the question.
:
Thank you, Mr. Chair, and thank you, Vice-Admiral Donaldson, Colonel Grubb, and Colonel Gauthier, for joining us today.
This is a most interesting piece of legislation. A lot of complex issues are before us, some having to do with the relationship between the CDS and members of the forces. I think in the case of the grievances in particular, we were given a few very passionate ideas about the relationship between the CDS and the members of the forces. These ideas came from ex-military people with a great deal of respect for their lives in the military and the military commitment.
We've had very outstanding chiefs of defence staff in our forces. The relationship seems to be important for the purposes of morale and leadership. There's almost an attempt to achieve a personal relationship, if you will, as part of the function of leadership. I think you would agree with that; I see your head nodding. I think that's desirable. It was suggested that in that context it was unwise to have the CDS delegate that authority for something like grievances, for example.
Maybe Colonel Gauthier or either of you could answer this. Would it not make sense to retain the right to settle grievances in the Chief of the Defence Staff as the final authority, recognizing of course that even in your role as a delegate, you would consult with him and that perhaps even the decision would be made by him? Couldn't the final authority still be retained with the CDS? It's been suggested, although not by any witnesses in this committee, that maybe the CDS doesn't want that responsibility, either for financial aspects or for final authority.
Is there any sense of that in your organization?
:
I'm not sure it's possible, Mr. Chair, to answer that question shortly, but let me offer a couple of thoughts.
First of all, this is a different business. Colonel Grubb and the provost marshal have the unenviable task of operating a world-class police force in incredibly changing and challenging environments. In that regard, the imperatives of conducting an investigation, the expectations of Canadians, and perhaps even the responsibilities of a provost marshal may come into conflict with some of the other priorities the Government of Canada has established for its fighting force.
One example would be conducting a forensic investigation in a battle scene. It goes without saying that we wouldn't send a whole bunch of military police into a live fire zone and put them at risk, but there may be a desire to send a bunch of military police into an area that will soon become a live fire zone, and there may be a requirement to balance some of that off.
I cannot really foresee very many circumstances in which I would make use of this provision, Mr. Harris. It makes me a little uncomfortable, because I value quite highly the independence of the provost marshal. In fact, I depend upon it.
Having said that, I could foresee, potentially, occasions when the provost marshal may wish for me to provide instructions to guide the course of an investigation in a complex scenario, because he may feel conflicted. He may seek that type of guidance. A provision in the bill would allow us to confront that quite openly and transparently and allow us to address that. I think that 10 or 15 years from now I would not want to be a vice-chief wishing that we had some way of dealing with the situation. Having it in the bill gives us that option, even if we never exercise it.
:
Thank you for the question.
First of all, I would say that to contemplate significant changes to available punishments in the summary trial process should be looked at very carefully and taken very seriously. My thoughts today, I would say, would be an incomplete view of those contemplated changes.
In terms of eliminating detention, detention by its nature is a rehabilitative sentence. In my experience—and I have some reasonable experience administering justice in the Canadian Forces—it is an extremely useful behaviour correction method. It is also a particularly effective deterrent to young men and women whose most precious commodity these days is their free time. Given the interests of the summary trial system--the importance of swift administration of justice while effectively maintaining morale and discipline in the unit--I consider detention to be a very important tool. Although it is a fairly serious tool for a summary trial process, I consider it to be entirely appropriate for what it is we're trying to achieve.
I would also say that if you took a poll of the men and woman affected by the summary trial process, they would be very uncomfortable if we did not have such a process. I think that for the minor charges that are dealt with by summary trial, it very much serves the interests of justice and fairness and swiftness that our men and women are looking for.
I would also say that the removal of detention as a sentence would concern the men and women of the Canadian Forces because they would feel that administration of justice would perhaps not be sufficient to maintain discipline and morale and to act as a deterrent effect within a unit for behaviours that everyone would like to correct.
Does that answer your question?
:
Well, I've spoken about how I feel that it's not an abdication at all. I've spoken about the principle of delegation that we apply in many other respects that affect the lives and safety of men and women in uniform, and that in fact it enhances the safety of those men and women to empower leaders to make the right decisions in the right way at the right time. I feel that in the same vein the Chief of the Defence Staff's delegating of some of his responsibilities and authorities as final authority in the grievance process will in no way detract from his accountability or responsibility at the end of the day or from the efficacy of the system.
We balance, with the grievance system, two very challenging objectives. One is the objective of time limits. We have done a lot of work and we have made a lot of changes to allow us to address grievances faster than we have in the past. Frankly, we haven't done well historically, but we're doing much better. We still have work to do, and we hope the trial of the principled process will help us do that.
On the other hand, one of the reasons it takes so long is that we are focused on fairness--making sure that we thoroughly understand the grievance, thoroughly understand the issues involved, understand the precedents that have been set, understand the latitude that is available to the final authority, and are able to render a decision that meets the expectations of full consideration and a fair treatment of the grievance. That takes time. In fact, as we've heard, grievances that get to the final authority can be immensely complex and involve a number of different important principles that need to be reconciled.
So on one hand we have the requirement for timeliness and on the other the requirement for fairness and thoroughness, and it is by the chief's ability to delegate some of his decision-making that we're able to do both: we're able to be thorough and to address the issues in the detail required and manage the complexity, and yet still render a decision in an acceptable timeline. This is why we're pursuing that course of action.
:
Good afternoon, everyone.
We now continue the 51 st meeting of the Standing Committee on National Defence.
[English]
You have two budgets in front of you. We want to be able to reimburse the witnesses who were before us when we did our study on search and rescue and the other study on .
The first budget I want to have the committee approve is in relation to our study on search and rescue response times. The proposed budget is in the amount of $35,500. I'm asking the committee to adopt this budget in the amount of $35,500 to reimburse witnesses.
Do we have agreement?
Some hon. members: Agreed.
The Chair: Thanks.
The second budget is in relation to . The proposed budget is in the amount of $11,650.
I'm asking that this budget be adopted by the committee, in the amount of $11,650.
Do we have agreement?
Some hon. members: Agreed.
The Chair: This budget has also been approved. Merci.
Now we'll go to clause-by-clause consideration.
Oui, monsieur Bachand, vous avez la parole.
[English]
Thank you.
I just want to inform the member that, as you know, we have with us for our clause-by-clause consideration,
[Translation]
Colonel Patrick K. Gleeson, Deputy Judge Advocate General, Military Justice and Administrative Law; Lieutenant-Colonel Michael R. Gibson, Director, Strategic Legal Analysis; and Lieutenant-Colonel André Dufour, Director, Directorate of Law, Military Personnel. Thank you for being here with us and helping us with our work.
I would also like to tell members of the committee that the law clerk has suggested to the chair that Bloc Québécois amendments BQ-1, BQ-8, BQ-9, BQ-10 and BQ-11 be grouped. It is better for the committee to discuss these amendments and then proceed to vote on them all together.
Mr. Bachand, the floor is yours.
:
I think that if you spoke to the chief military judge, you would find that he certainly seems to be comfortable with the complement of judges that he has right now.
If I could just clarify, though, the intent isn't to get rid of these reserve military panel judges. They would be appointed and have security tenure in the same way a full-time judge would have that tenure, the difference being that unlike the full-time judges, as in the civilian court structure, they aren't paid on a full-time basis. They would continue to hold that position until they reached retirement age, but the chief military judge would decide when he wanted to, for lack of a better term, call them out for service to perform a judicial function. It's just a means of providing a greater pool of individuals available to the chief military judge.
As I said, the extreme example is the mobilization example I talked about earlier, but there are many more practical day-to-day examples of how this could arise. For example, if you ended up with a case with six co-accused who were all being tried separately, having four judges would create a significant problem. We haven't faced that problem to date in our system, but six co-accused with four judges would create a significant problem for the chief military judge as he tried to find a judge who was not conflicted, based on something he'd done earlier. This panel would give him a pool of other people he could go to in order to resolve that type of situation.
It really is not intended to in any way undermine the tenure or judicial independence of this pool of, for lack of a better term, part-time individuals. They would remain in their positions; once appointed, they would remain there. It really would be up to the chief military judge as to how he chose to employ them, and when he employed them, of course, they would be paid for those services.
That's the intent here.
:
I read quite thoroughly the views of the chief of the Military Police Complaints Commission. I listened to Vice-Admiral Donaldson and Colonel Grubb as well. The question really wasn't answered. Maybe the JAG could help us here.
The argument put forth by the Military Police Complaints Commission is that this was unnecessary because the relationship between the vice-chief of defence staff, whoever that may be, and the provost marshal was within the chain of command, and that this power actually existed, so it was unnecessary to put that in there. Now, there may be a transparency argument to say that it may exist, but this puts it on paper and formalizes it, and it also provides the transparency side, which I think is a useful argument.
I have a second concern or question regarding this matter. We have two sets of guidelines here. One is the general guidelines. The Military Police Complaints Commission gave us a copy of a 1998 general set of instructions--or authorities, I suppose you'd call it--signed by the then Chief of the Defence Staff and the provost marshal of the day. I think it's called the accountability framework. I don't know if it's current or not. Maybe you could tell us about that.
If we're going down this road of formalizing the role of the provost marshal and formalizing the right to make instructions, I would be inclined to consider this amendment if we add to proposed subsection 18.5(4) so that it reads:
The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) and subsection (2) are available to the public.
There are two sets of guidelines here. One is the general guidelines, or the accountability framework, and the second is the specific guidelines. I see the problem and I see that there may be circumstances in which it isn't possible to conduct individual or particular types of investigations in the way that the provost marshal as an independent police force might want in terms of professional standards, but in the interests of transparency and civilian or public awareness of this important relationship, I would want the general instructions, such as the accountability framework itself, to be made public as well.
Would you care to comment on this proposal?
:
Yes, Mr. Chair, I would be happy to do so, maybe starting at the end of that request first.
If you look at proposed subsection 18.5(2), you will note that there is already an obligation for the general instructions to be made public. There is an obligation under both the general instruction requirement at the end of proposed subsection18.5(2) and in proposed subsection 18.5(3) for instructions to be made public, so the transparency element is there.
To step back to the question about whether this is required, generally speaking I think I would agree with the view expressed: that clearly the chain of command has the ability to give instructions to subordinates, so a senior member in the chain of command has that legal authority. However, clearly the military police are in a special position. They have special responsibilities. As the vice-chief said earlier, he takes the notion of investigatorial or police independence very seriously, and it's very important that we recognize it and not improperly interfere with it.
Given that understanding, and in response to the recommendations made, we are actually framing in statute how that relationship should exist between the chain of command as represented by the VCDS and the provost marshal. As soon as you start framing that relationship in statute, it becomes necessary to articulate when and where that direction can be given.
If you were to include proposed subsection 18.5(2), which allows the issuance of general instructions, without the exceptional power that you see in proposed subsection 18.5(3), the only conclusion you could draw in the absence of proposed subsection 18.5(3) is that it's prohibited. You could never give that type of specific instruction.
So in response to your question and in response to the comments that the committee has seen in other material, I would suggest that it is in fact necessary because of what is being done in this bill.